Volume 80 — North Carolina Reports

<p>Civil Action tried at December special term, 1877, of Beaufort superior court, before Schench, J.</p> <p>The case is sufficiently stated by Mr. Justice Dillard in delivering the opinion of this Court. Judgment for plaintiff. Appeal by defendant.</p>

Civil ActioN tried at fall term, 1878, of Guilfoku superior court, before Kerr, J. The case is sufficiently stated by Mr. Justice Ashe in delivering the opinion. Verdict and judgment for the defendants. Appeal by plaintiff.

<p>Practice — New Trial.</p> <p>Where the judge who presided at a trial, goes out of office without making' up a case of appeal, and the appellant is in no default, a new trial will he awarded.</p>

<p>Practice — Appeal.</p> <p>Where there is no statement of the facts proved at the trial in the court below, and no error appears on the record, this court will, on appeal, affirm the judgment.</p>

This was a proceeding under the act of March the 12th, 1866, enabling the banks of the state to close their business, ánd at fall term, 1866, of the court of equity of Beaufort county, before Barnes, J., a decree was obtained appointing John G. Blount a commissioner to receive the effects of the bank, sell its real estate and advertise for all creditors to establish their claims before the commissioner within twelve months.

<p>Civil Action heard upon exceptions to referee’s report at fall term, 1878, of Chatham superior court, before Kerr, J.</p> <p>The plaintiff executed a deed in trust in 1856 to the testator of the defendants to secure the creditors therein mentioned and any others he might owe, whether mentioned or not. The trustee by consent of all parties interested, within twelve months and before the day of default mentioned in the deed, sold the personal property at $250, or thereabouts, at six months, and took notes with surety from the purchasers, which notes he held up to his death in December, 1858. After his death they came to the hands of defendants, the executors of the trustee, and remained in their hands at the institution of this suit, uncollected and unapplied to the trust creditors.</p> <p>This suit of the plaintiff is brought to have an account of the trusteeship of A. D. Headen, and of the trust funds which came or ought to have come to the hands of A. D. Headen, or into the hands of the defendants as executors of the trustee since his death, and from the decree of the court adjudging against the defendants the amount of the trust funds and fixing them with assets of their testator to pay the same, an appeal is taken to this Court.</p>

<p>Practice — •- Certiorari — Appeal.</p> <p>Where a certiorari returned to this court shows an imperfect record and no statement of the case, a new writ of certiorari will not he granted; but the appeal will be dismissed.</p>

Motion to vacate a judgment heard at spring term, 1878, of New Hanover superior court, before Eure, J. No statement of the case is necessary to an understanding of the opinion.

\ . Upon complaint and answer and the report of a referee filed in the cause, His Honor on motion of plaintiffs’ attorney, gave judgment against defendant. And on a subsequent day of the same term, on motion of defendant’s attorney, His Honor ordered that said judgment be vacated on the ground that the court erred in granting it, and from, this the plaintiffs appealed.

Civil ActioN tried at Spring Term, 1878, of Chowan Superior Court, before Fv.rch.es, J. This action was brought for the sale of a tract of land .known as “Locust-Grove,” and for the application of the proceeds of sale to the discharge of certain liens attaching ■thereon.

Civil Action tried at Fall Term, 1878; of New Hanover Superior Court, before McKoy, J. David Smith died intestate in the year 1862, seized and possessed of certain land in the city of Wilmington which descended to his two infant children, David and Catharine.

Pending the action and on application of the plaintiff, the court below made an order for the appointment of a receiver, upon the facts which are sufficiently set out by Mr. Justice Dillard in delivering the opinion. From this order the defendants appealed.

<p>Motion to set aside a judgment, heard at Spring Term, 1878, of Bukke Superior Court, before Cloud, J.</p> <p>From the transcript of the record and the case agreed by the counsel in the court below, the facts are that the heirs of Thomás Walton, deceased, in 1859, filed their petition for the sale of their ancestor’s land and a division of the proceeds of sale in the court of equity of Burke county. In the regular course of the suit, under decree of the court, a parUof the land was sold by E. J. Erwin, clerk and master, and sales confirmed. In 1868- T. George Walton was appointed tó make sale of the lands not sold by the clerk and master, and under this appointment, the said T. George Walton, as commissioner, sold to William M. Walton, one of the heirs of Thomas Walton, the brick corner lot in the town of Morganton at $2,950 and secured the payment of the purchase money by taking his bond, with John H. Murphy as surety, and this sale was confirmed by the court. In October, 1872, while the suit in equity aforesaid was still pending, T. George Walton, as commissioner, brought suit on said bond to the fall term of Burke superior court and William M. Walton acknowledged the service of the summons and at the term judgment by default for want of an answer was taken against William M. Walton alone. Upon the rendition of the judgment an execution was issued and returned by the sheriff, indulged by the plaintiff. William M. Walton paid on the judgment $500 and no other execution was issued until the 5th of January, 1878, and ii is agreed, that was issued by leave of the court on regular proceedings to relieve against dormancy.</p> <p>In the meantime, in the year 1877, Moore, Jenkins & Co., Watrous, Sims & Co., E. S. Jeffreys & Go., Dunsmore & Kyle, Hurst, Purnell & Co., and others obtained judgments against W. M. Walton, and had the same docketed in Burke superior court, and executions were issued and in the hands of the sheriff at the same time with the one issued in favor of T. George Walton, all returnable to spring term 1878, and under these executions the sheriff put up and sold all the lands of the debtor, and some difficulty being suspected as to the title, the purchaser refused to pay his bid, and thereupon the executions were returned, no sale.</p> <p>The sale having failed, the said judgment creditors, Moore, Jenkins & Co., and others, at the return term of these executions moved the court for leave to intervene in the suit in which T. George Walton had recovered his judgment against W. M. Walton, and on leave given, they filed their petition, wherein besides the facts above set forth, they represented that W. M. Walton was entitled to a credit on his purchase to one-sixth and one-fourth of one-sixth of the proceeds of sale of all the lands of Thomas Walton, deceased, besides the $500 paid on the judgment, and that the plaintiff, T. George Walton, had the title to the land retained as a security for the purchase money due from W. M. Walton; and they showed forth that the action against W. M. Walton by the plaintiff as commissioner was brought when remedy might be had in the pending suit in equity, and therefore insist that the judgment recovered was irregular and void, and the only relief they pray for is that the judgment in favor of the plaintiff, T. George Walton, and the execution issued thereon and levied on the lands of W. M. Walton be vacated and set aside. On the hearing of the motion His Honor adjudged that the action of T. George Walton against W. M. Walton was unnecessary, and that remedy might be had by motion in the equity cause for the sale of the land, still pending, and that the judgment was irregular and contrary to the course of the court, and he adjudged that the said judgment be vacated and set aside, and from this judgment the appeal is taken by the plaintiff.</p>

<p>Petition to Rehear filed by the defendants and heard at January Term, 1879, of The Supreme Court.</p> <p>See same case, 79 N. 0., 493.</p>

MotioN to set aside a judgment heard at Fall Term, 1878, of New HaNovee. Superior Court, before McKoy, J. This action is brought for the foreclosure of a mortgage and the sale of the land conveyed, by summons returnable to April term, 1878, of the superior court of New Hanover county. The complaint was filed at that term and the defendant appeared by counsel, but no answer was put in and the cause was continued without further action.

Civil Action in the nature of a creditor’s bill heard at Fall Term, 1878, of Wake Superior Court, before Seymour, J. Upon the decision in same case, reported in 79 N. C., 42, being certified to the eburt below, the following order was made: That defendant bo restrained from further action in selling the real estate of his testatrix, under the proceedings instituted by him in the probate court asking fora license to sell the same for assets; that defendant be appointed as…

The plaintiff being indebted to the defendants in the sum of $1,504.91, to secure the same and to provide for supplies in money and articles needed to carry on his farming operations, to be furnished by the defendants, and in the aggregate not to exceed $4,000, for which sum he gave them his promissory note payable on the 1st of December, 1876, on the 27th of January preceding, executed to them a mortgage giving a lien on the crops to be made, under the statute and conveying…

<p>Practice — Default of Purchaser — Re-sale of Land — Surety and Principal.</p> <p>I. Where a purchaser fails to pay the note for the purchase money of land sold under a decree, the court will, upon notice, order a resale and charge him with the deficiency, in case the price obtained is not enough to pay what is due on the note. And this, without the concurrence of the delinquent purchaser. Exparte Tates, 6 Jones Eq., 212, modified.</p> <p>:2. A surety upon a note for the purchase money of land sold under a decree of court, has the right, on default of his principal, to require a re-sale in exoneration of his liability.</p>

<p>Practice — Reeordari—Attachment—Liability of Garnishee.</p> <p>1. A writ oí reeordari, although in terms addressed to the sheriff, is legally as sufficient as if formally addressed to the justice who rendered tile judgment, after lie has yielded obedience thereto and recorded and sent up his proceedings.</p> <p>2. It is no objection to the docketing of a case upon the return to a writ of reeordari, that the justice's fees have not been paid; such objection can be urgecl only bj"- the justice.</p> <p>S. A failure to give bond on a petition fora reeordari is remediable, in the discretion of the court, after a return to the writ is made, by the execution of a bond nune pro tunc.</p> <p>4. A warrant of attachment served upon a debtor of the defendant, either with or without a certificate given oí the amount of indebtedness, is merely a security for such sum as the plaintiff may recover in his action; it does not subject the garnishee to have judgment taken against him in the pending cause, but only to a separate action for its recovery.</p> <p>5. On the hearing below, it appeared that a garnishee in an attachment proceeding, appeared before a justice’s court upon notice, on November.13th, and denied any indebtedness to defendant; that on December 10th, without further notice, judgment was rendered against the garnishee, of which he had no knowledge until December 27th, when he sought to arrange for relief with plaintiff’s attorney, and thought he had done so ; that on January 3d, he was notified that no arrangement could be made, and on January 7th, he applied to the justice io vacate the judgment, which being denied, he applied on January 10th, for a writ of recordari ; Held, that the right of appeal was lost without default on his part, and as he had merits, the writ of recordari was properly granted.</p>

MotioN to vacate an Order heard at November Special Term, 1878, of Madison Superior Court, before Avery, J. This litigation was begun by a bill in equity, under our old system, to fall term, 1867, of the superior court of law and equity of Madison county, and from the pleadings the case was, that William Ramsay and A. J. Ramsay, his son, about 1856, agreed by parol to buy the tract of land, described in the bill, at clerk and master’s sale and pay for the same equally, and…

<p>PetitioN to Rehear filed by plaintiff on the 12th of February, 1878, and heard at January Term, 1879, of The ■Supreme Court.</p>

<p>Civil Action heard upon a motion for the appointment of a Receiver, at Fall Term, 1878, of Rutherford Superior-Court, before Schenclc, J.</p> <p>The opinion contains facts-sufficient to an understanding of the point decided. His Honor allowed.the motion, and the defendant, Logan, appealed.</p>

<p>Practice — Vexatious Litigation — Right o-f Appeal.</p> <p>1. A party ought not to be harassed by successive motions for an order, made in the progress of a cause, when the motion, after full investiga- ' tion has once been refused, unless upon facts thereafter transpiring, which make an essentially new and different case.</p> <p>2. The granting or refusing an order-for an injunction or for the appointment of a receiver, is not a mere matter of discretion in the judge, and either party dissatisfied with his ruling may have it reviewed.</p>

ApplicatxoN of the Sheriff for advice and direction in the distribution of certain moneys in his hands by virtue of sundry executions, heard at Pall Term, 1878, of Person Superior Court, before Kerr, J. The facts are sufficiently stated by Mr. Justice Ashe in delivering the opinion. See Williams v. Williams, 79 N. C., 411.

Petition in the Cause filed by a purchaser for relief against a defective title to land, heard at January. Tenr, 1879, of The Supreme Court.

PetitioN filed before the clerk and tried, upon issues, joined, at Fall Term, 1878, of Henderson Superior Court, before Avery, J. This was a petition filed by Rufus Edney, administrator of B. M. Edney, for a license to sell the real estate of his intestate, including a tract called the “ Myers farm,’' and was begun by summons returnable in the office of the clerk of the superior court of Henderson- county, and after all ¿he heirs at law of the intestate were regularly made…

<p>Practice — Judicial Sale — Re-sale of Land.</p> <p>On a motion by plaintiff to set aside a sale of land, sold under decree of this court, where it appeared that the sale was advertised for January 4th, and afterwards changed to the 6th, and that plaintiff (the owner of the land and against whom the decree of sale was made} had arranged with one H to attend and buy the land and allow him to have it on re-imbursing him, and that both H and plaintiff had been prevented trova attending the sale on account of the inclemency of the weather, and it also appeared that plaintiff had advanced the bid at which the land was sold ten per cent, and secured the payment of the ■same; It was held, that the sale should be set aside, the proceedings thereunder cancelled, and a re-sale liad, opening the biddings at the advanced bid of plaintiff.</p>

Civil ActioN, heard, on motion of the parties, at Spring Term, 1878, of Northampton Superior Court, before Seymour, J. On a sale of land on the 3rd of June, 1861, by a clerk and master of the court of equity of Northampton county on an exparte petition, the defendant, John T. Peebles, becoming the purchaser at $112 gave bond to secure the same with defendant Isaac Peele as his surety, and on motion. in the 'cause in the superior court at fall term, 1874, judgment was entered…

MotioN to set aside a judgment under C. C. P., § 138, heard at Chambers in Charlotte, on the 12th of October, 1878, before Schenck, J. The opinion contains the facts. His Honor refused the motion and the defendant appealed.

<p>Practice — Laches.</p> <p>In pursuance of a decree to distribute the assets of an insolvent bank,, advertisement was made for creditors to prove their claims by a certain, day, on pain of being thereafter barred; Held that a creditor who had' no information of the advertisement, and who was not guilty of laches-in presenting his claim, was entitled to prove after, the day named. ■</p>

<p>ClaiM AN© Delivery tried at Spring Terna, 1876, of Northampton Superior Court, before Henry, J.</p> <p>This action was instituted by the plaintiff, a white naan, against the defendant, a colored -man, to recover possession •of a horse. When the case was called for trial, there was a full jury of the original panel in the box, of whom-one only was colored. The plaintiff’s eounsel challenged this juror peremptorily, remarking at the time, that be did not know his name. Thereupon the regular panel being exhausted, the judge requested the sheriff to summon from the bystanders a colored tales juror in his place, and to this the plaintiff excepted. The colored juror thus summoned and tendered was also challenged for cause by the plaintiff who failed to show his disqualification. The plaintiff’s counsel then peremptorily challenged one of the white jurors, and .-another colored tales juror was summoned in his stead, whom the plaintiff also challenged for eause, and failed to sustain his challenge. It does not .appear that the plaintiff añade any other peremptory challenges. The jury being impannelled on hearing the evidence found a verdict for defendant. Judgment, appeal by plaintiff</p>

The facts necessary to an understanding of the decision of this court are stated in its opinion. The order for mandamus was granted and the defendants appealed.

The plaintiff alleged be had been re-elected clerk of the said court on the first Thursday in August, 1878, and demanded that the defendants, board of county canvassers, be ordered to reassemble and count the votes Of Town Creek township as returned by the judges of election, and add them to the votes of the other townships in the county, and proclaim the result of tlie election for clerk of the superior court.

<p>Cosfe — Witness tickets^-Payment of — Evidence,</p> <p>Gosts and ehargeaoi state’s' witnesses upon acquittal of a defendant were-ordered to be paid by the countyand in sin action against the commissioners to recover tlie amount of tickets issued to such witnesses ;; It wag %etd1</p> <p>(1) That tire statute makes the tickets presumptive evidence of the facts set forth therein — attendance, miles traveled, &e.</p> <p>(2) This evidence, together with the order of the court,, imposes a duty upon defendants to provide for their payment.</p>

Case Agreed heard at Fall Term, 1878, of Beaufort Superior Court, before Mire, I. The plaintiff who had been elected sheriff of Beaufort county appeared before the defendant commissioners at their meeting on the first Monday in December following, and tendered the process bond in form and with sufficient sureties as required by law, but. refused to give the prescribed bonds for the collection of state and county taxes.

Controversy submitted without action under C. C. P., § 315, at Fall Term, 1878, of Beaufort Superior Court, before Eure, J. The plaintiff was elected clerk of the superior court at the election held in August last, and was'' so declared by the board of county canvassers as required by law.

Civil Action in the r.aturo of a quo warranto, tried at Spring Term, 1878, of Geanvilue Superior Court, before Seymour, J. The case is sufficiently stated by Ti-ie Chief Justice. Judgment for the defendant, and the plaintiff appealed.

<p>County Commissioners — Sheriff—Election of.</p> <p>S was appointed sheriff in 1875, to till a vacancy, and held the office until May, 1877 £ in the meantime — Nov., 1876 — an election was held, and upon the result of certain legal proceedings in May, 1877, M was declared to be elected sheriff, who failed to give bond, and the county commissioners declared a vacancy and appointed Bto fill the same ; Reid, that S had no right to hold over until the. next popular election, hut that B was entitled to the office, being elected by the commissioners.</p>

Case Agreed heard at Chambers in Lincolnton, on the 9th of January, 1879,, before Schenclc} J. The question presented was, — whether the election of plaintiff as register of deeds on the first Thursday in August, 1878, was regular and legal. His Honor held that it was, and ordered the defendant to surrender the office to the plaintiff. Appeal by defendant.

<p>CONTROVERSY submitted without action under the Code, § 315, and beard at Fall Term, 1878, of Wilson Superior Court, before McKoy, J.</p> <p>The case agreed states : “ On the first Monday of September, 1877, the justices of the peace of Wilson county, in accordance with an act of the general assembly, ratified on the 3rd of March, 1877, entitled an act to establish courts inferior to the supreme court, to be styled ‘the inferior court,’ organized an inferior court by the election of three justices and an attorney, but declined to elect a clerk, it being entered of record that the clerk of the superior court be accepted as clerk ex-officio of the inferior court, who at the first term of said court gave bond in the penalty required by lawj and thereafter performed the duties of clerk’ of such inferior court. H. C. Moss was then clerk of the superior court, and at the general election held on the first Thursday in August, 1878, he was re-elected clerk of the superior court. At a regular meeting of the justices of the peace of said county, a majority being present, held on the first Monday in August, 1878, T. C. Davis was elected clerk of the inferior court for said county, and gave bond and was duly qualified before said justices who accepted said bond.</p> <p>It is agreed on this statement of facts, if His Honor shall be of opinion that H. C. Moss, clerk of the superior court, is the clerk of the inferior court of Wilson county, then judgment shall be entered that he hold the same and be recognized as such. If the opinion of the court be otherwise then judgment shall be that Hr C. Moss surrender the records, books and papers belonging to said office of inferior court clerk to the said T. C. Davis.” His Honor held that plaintiff was entitled to the possession of the office, books, papers and other proprerty of the clerk of the inferior court, and that defendant surrender the same to the plaintiff. Judgment accordingly. Appeal by defendant.</p>

<p>Civil Action upon a Sheriff’s Rond, tried at Fall Term, T878, of Franelin Superior Court, before Kerr, J. x</p> <p>The exceptions constituting the basis of the decision of ■this court are embodied in its opinion. Both parties appealed from the judgment, of the court below.</p>

MotxoN for an Injunction, heard at Chambers, on the 16th of December, 1878, before Buxton, J. , The plaintiff resides near to and outside the corporate limits of the town of ^Fayetteville, but conducts and carries on his business as a merchant within the town.

See Parker v. Banks, 79 N. C., 480. Mary Banks, the plaintiff, is the widow of Thaddeus P. Banks, and the other plaintiffs are his children and heirs at law. In 1868, David Parker sold and conveyed to C. C. Pool nine hundred and forty acres of land, lying in the county of Perquimans, for $3,600, payable in installments, and took from Pool a mortgage on the same to secure the purchase money, $1,600 of which was paid by Pool.

Civil Action tried at Spring Term, 1876, of Granville Superior Court, before Seymour, J. The statement in same case, 76 N. C., 835, and the facts set out by The Chief Justice in delivering the opinion of this court are . deemed sufficient to an understanding of the points decided. Judgment for plaintiff, appeal by defendants.

■Civil ActioN tried .at Sprite g Term, 1878, of Mecxlen-'burg Superior Court, before Cox, J. This Action was brought for the foreclosure of .a mortgage ¡and heard upon demurrer, which ITis Honor sustained and ■dismissed the case, -and the plaintiff appealed. The facts are set out by The Chibe Justioe.

Special Proceeding heard on appeal at.December Special Term, 1877, of Beaufort Superior Court, before Schenclc, J. Upon the facts which are set out by Mr. Justice Asi-ie in delivering the opinion, His Honor held that the defendant, widow, was not entitled to a homestead, and from that ruling she appealed.

<p>Amercement of Sheriff — Homestead.</p> <p>1. A sheriff is not liable to amercement for failure to have, in court the amount of an execution issued upon a judgment for a debt contracted prior to I86S, when the judgment debtor lias no property, real or personal, in excess of his exemptions under article X of the constitution.</p> <p>2. The provisions of the exemption laws (constitution, art. X, and the statutes passed in pursuance thereof,) so modify cliap. IOC, § 15, Bat. Rev., as not to authorize the infliction of the penalty therein imposed for obedience to said exemption laws.</p> <p>Note — The same ruling was made ia a similar case between the same parties at this term.</p>

ArPLicATiON for a Mandamus to compel defendant sheriff' to levy on and sell property of judgment debtors, heard at Spring Term, 1877, of Cumberland Superior Court, before MeKoy, J. The complaint states that at November term, 1869, of said court, the plaintiffs recovered a judgment against William Warden and Daniel McKinnon for the sum of $836.17,. with interest from the 15th of November, 1869, and costs, on three promissory notes for one hundred dollars each, dated November…

<p>Homestead and Personal Property Exemption — Debts contracted' prior to 1868 — Attachment—Sheriff’s Bond.</p> <p>1. Property seized under attachment is only a legal deposit in the hands of the sheriff to abide the event of" the action, and after judgment against the defendant, he is entitled to the same exemptions in the property attached as he would have been had there been no attachment.</p> <p>2. In an action upon a sheriff ’s bond, where the breach- alleged was the failure to sell certain personal property under execution, which was in the possession of the sheriff, having been attached by him in the action in which judgment was rendered, such judgment being founded upon a debt contracted prior to 1868; It was held, to be error to exclude evidence tending to show that the judgment debtor was entitled to the property attached as his personal property exemption.</p> <p>3. A judgment debtor is entitled to exemptions under Const., Art. X, § 1,. against a debt contracted between February 2oth, 1867, and the adoption of the constitution of 1868. Qucere, as to exemptions'll! personalty agiinst a debt contracted prior to February 2oth, 1867.</p>

The record shows that the plaintiffs obtained several judgments against the defendant on debts contracted prior to 1868, and executions were issued thereon and placed in the hands of J. II.

<p>Civil Action to recover Possession of Land tried at Fall Term, 1878, of Transylvania Superior Court, before Avery, J.</p> <p>The opinion contains the facts. Judgment for defendants, appeal by plaintiffs.</p>

<p>MotioN by defendant Wilson to set aside a judgment, heard at Spring Term, 1878, of Mecklenburg Superior Court, before Cox, J.</p> <p>The facts are embodied in the opinion delivered by Mr. Justice Dillard. The • court below vacated the judgment as to Wilson, and the plaintiff appealed.</p>

Civil Action tried at.Spring Term, 1878, of Foksyth Superior court, before Buxton, J. The action was brought to recover the amount of a note executed by defendant to plaintiff’s intestate. The plaintiff alleged that defendant had improperly obtained possession of the note from his intestate a few days' before his death, when he was in such mental condition as incapacitated him for business.

Civil ActioN on a former judgment tried at Fall Term,. 1878, of MadisoN Superior Court, before Avery, J. The facts appear in the opinion. Judgment for the plaintiff. Appeal by defendant.

<p>Civil ActioN tried at June Special Term, 1-878, -of New HaNover -Superior Court, before Eure, J.</p> <p>The facts a-re fully stated in same case reported in 77 N. ■O., 128, and 78 N. C., 67, and those material to the point discussed and determined upon this appeal, are embodied in the opinion delivered by Mr. Justice Dillard. Judgment for defendants, appeal by plaintiffs.</p>

Civil ActioN tried at Spring Term, 1878, of Poesyth Superior Court, before Buxton, J This action is against the sureties to the bonds given by one Henry J. Pegram, guardian to the feme relator, to recover her estate in his hands. He died in 1864, and she attained her majority in the early part of the year 1874.

Civil Action triocl at Fall Term, 1877, of New Hanover Superior Court, before Moore, J. The contract sued on in this action is under seal and was executed by the defendants as executors of John McCallum, on the 14th of October, 1873, to Charles McRae for $3,532.32, for the amount of an account due and owing by their testator at the time of his death to Charles McRae and Henry McCallum, partners, trading under the name and style of Charles McRae.

Civil ActioN tried at June Sp.ecial Term, 1878, of New Hánoveb. Superior Court, before Eure, J. It was admitted in the pleadings that in May, 1863, one-Charles Craig was seized of certain lands which is the subject of the controversy, and executed a deed in fee for the' same to his brother, the defendant Thomas Craig, on the-15th of May, 1863. 1. Plaintiffs allege that said.

Civil ActioN commenced in Iredell and removed to and fried at Fall Term, 1878, of Catawba Superior Court, before Gudger, J The case is stated by The Chief Justice in delivering the opinion. Verdict and judgment for plaintiffs, appeal by defendants.

Civil Acton heard upon exceptions to referee’s report, at Spring Term, 1878, of FrankliN Superior Court, before Seymour, J. The plaintiffs as heirs at law of Joseph H. Riggan, sued to recover a tract of land, and defendants claim the same land under a deed of plaintiffs’ ancestor to James T. Brown and a deed from Brown to them.

PETITION filed by defendants on the 18th day of November, 1876, to set aside a judgment, and heard at Chambers,, before Seymour, J. The defendants in their motion presented in the form of' a petition state that they were sued to spring term, 1876, of Craven superior court by the present plaintiff on a cause of' action against which they had a good defence and that they had employed L. J. Moore, an attorney practicing in said! court, to attend to their business and expected…

Civil Action -to recover Land tried at Fall Term, 1877, of Bladen Superior Court,, before Moore, J. That part of the case applicable to the point decided is as follows; To establish the location of the land as claimed by plaintiff under certain grants, Foster Mason was allowed to testify what Duncan McCormick told- him while owner of the land, and what were- the comers as pointed- out to him.

Civil ActioN for Divorce a vinculo matrimonii tried at Fall Term, 1878, of Wake Superior Court, before Seymour, J. The facts applicable to the point decided by this court are embodied in its opinion. Judgment for defendant, appeal by plaintiff.

<p>Issue of Devisavit Vel Non tried at Fall Term, 1878, of Wake Superior Court, before Seymour, J.</p> <p>Weston G. Lougee at his death left two paper writings purporting to be wills, one dated the 11th of July, 1876, in which hegave his property to the plaintiff, W.R. Pepper, and the other dated the 17th of July, 1876, wherein he gave his property to Carolina Broughton, wife of N. B. Broughton, a relative; and on the same being offered for probate a caveat was entered to the probate of each by the legatee in the other, and thereupon the cases were sent up from the probate court to the superior court, and all the next of kin and heirs at law were summoned, to see proceedings and take part in issues devisavit vel non, to be found.</p> <p>In the superior court an issue devisavit vel non was framed as to each paper writing and by consent submitted to the same jury, no one of the next of kin or heirs at law of the supposed testator taking sides in thé controversy. In the course of the evidence, Pepper made proof by one Harris as material to the issue under consideration, that on one occasion he and the decedent met N. B. Broughton on the streets of Raleigh, and he took no notice of the decedent, and decedent remarked “he married one of my nearest kin and won’t speak to me.” In answer to this proof of declarations of the supposed testator on the occasion referred to, Carolina Broughton, the propounder of the script bearing date the 17th of July, introduced N. B. "Broughton, her husband and co-propounder, and by him proposed to show that “he never refused to speak to Loügee.” This evidence was objected to but admitted by the court, and its admission is assigned as error. Verdict for defendants, judgment, appeal by plaintiff.</p>

<p>Civil Action tried at Fall Term, 1878, of Guit.eord Superior Court, before Kerr, J.</p> <p>The plaintiffs allege that in the year 1853 Andrew Weath-erly, then owning a lot of land in Greensboro, for the sum of $2,000 sold and conveyed the same by deed directly to the plaintiff, Mary D., then the wife of 1). P. Gregg, or to the plaintiff, Elizabeth Harwood, his trustee for her separate use, and that payment therefor was made out of funds belonging to her separate estate, and that the deed, without having been registered, is lost. The object of the action is to set up the deed and recover possession of the land from the defendant, Hill.</p> <p>The defendant denies these allegations and says the deed was made directl}r to D. P. Gregg, the deceased husband, for his own use, and that by successive conveyances the titie has vested in himself; and he relies upon several other matters of defence contained in his answer. Thereupon the said Weatherly is made a co-defendant, and he files his answer admitting the sale and conveyance of the lot to the plaintiff, Elizabeth, for the use of the plaintiff, Mary D., and that the contract therefor and its consummation by deed, on payment of the purchase money were effected through the agency of the husband acting on behalf of the trustee. He sets up no claim to the property and “submits to such orders and decrees of the court touching the title as the court may make.” The jury found under the evidence that the deed alleged to be lost, was made by Weatherly to D. P. Gregg in his own right, and 'the court held that the legal estate was in the heirs of Weatherly, now deceased, and that defendant was entitled to have them declared trustees'for his benefit, subject to whatever equities the plaintiffs may establish by reason of Gregg’s purchase of the land with their money. Motion for a new trial refused, judgment for defendants, appeal by plaintiffs.</p>

-MotioN for an Injunction and appointment of a Receiver, heard at Chambers in Asheville on the 10th of August, 1878, ■before -Henry, J. The facts appear in the opinion. His Honor granted the .motion-and the defendant appealed.

Civil Action tried at Fall Term, 1878, of Forsyth Superior Court, before Graves, J. Case agreed: In 1865, the defendant became surety on a guardian bond of R. L. Walker, deceased husband of plaintiff, and in 1872 a judgment was obtained on the bond. Subsequently Walker died insolvent, the judgment remaining unpaid.

Civil Action tried at December Special Term, 1878, of New HaNOVer Superior Court, before MoKoy, J. This action was brought against defendant as surety on the official bond of one James C. Mann, a former clerk of said court, to recover certain moneys alleged to have been collected by said clerk from certain inspectors in Wilmington, under and by virtue of a private act of the legislature, ratified on the 21st of December, 1870; and was heard upon exceptions filed by defendant…

Civil Action tried at Fall Term, 1878, of Richmond Superior Court, before Buxton, J. The plaintiff brought this action on a note of which the following is a copy: “ We promise to pay James P. Leak (plaintiff's intestate) or order three hundred and fifteen dollars, demandable and payable, as soon as and not before the legislature of North Carolina shall pass an act recog-, nizing a certain class of bonds, embracing bonds from Nos. 3,786 to 4,000 inclusive, issued under act…

<p>Contract — Conditional Sale — Registration*</p> <p>An instrument: under seal in the following words: I promise to pay J* C> the sum of $150 for one bay horse, “ and to secure him, the horse stands his own security;” Held tobe a conditional sale and not a mortgage, and not void for want of registration,</p>

ClaiM AND Delivery tried at Spring Term, 1878, of Mecklenburg Superior Court, before Cox, J. The defendant, White, doing business in Charlotte1'was adjudicated a bankrupt upon his own petition in the district court of the U. S. for the western district of North Carolina, on the 26th of June, 1875, and the defendant, Cuthbertson, was duly appointed assignee of his estate.

<p>Illegal Consideration — Fraud—Practice.</p> <p>A conveyance of land made by a debtor to his attorney at the suggestion of the latter with mutual intent to defraud the client’s, creditors, vests the legal estate as between the parties to the deed, and entitles the grantee to maintain an action for the land against his grantor in possession.</p>

<p>Civil Actiok tried at Fall Terra, 1878, of Guilford Superior Court, before Kerr, J-</p> <p>This action was brought to recover the sum of $450 al--. leged to be due on a special contract entered into between the plaintiff and defendant’s intestate. The parties agreed” to submit a single issue to the jury in these words; “Does the defendant, as administrator, owe the plaintiff $450 on special contract for two ponies, a buggy, and two sets of harness?” The evidence given on the trial of the issue was in substaneé as follows; The intestate of defendant was indebted to the plaintiff for a lot bought of him in the sum of $200 for which a note was given, and on the 4th of November, 1874, he became further indebted in the sum of §250 for another lot' purchased on that day. To pay the-indebtedness, the intestate then sold to plaintiff two ponies,, two sets of harness, and a buggy, for $450. The note held by plaintiff was thereupon surrendered and the second lot conveyed to the intestate. It was at the samé time agreed that the intestate- should retain the ponies, harness, and buggy until the 1st of May, 1875, and- then return them in good order-to the-plaintiff; and in case he failed' todo so, he was to pay plaintiff $450 with, interest from the 4th of November,, 1874; and meanwhile the plaintiff was at liberty to use the articles when the intestate- was not using them. There-was no controversy about the defendant’s failure to deliver in May, or' his offer to do so af any time since. No-exceptions were taken during the trial,.and. the instruction asked for the defendant was conceded by .the plaintiff’s-counsel and given to the jury, and they rendered a verdict for the plaintiff,</p> <p>1. The defendant’s counsel moved the court to dismiss the action on the ground that exclusive jurisdiction thereof was vested in the probate court. The motion was refused and defendant excepted.</p> <p>2, After the rendition of the verdict, the defendant’s counsel insisted that upon the face of the complaint as well as upon the evidence, the sum claimed was a penalty, and that damages.for the breach of the contract should be assessed by the jury before the plaintiff recovers judgment. The court declared that the objection -came too late, and overruled the motion. Defendant excepted.</p> <p>Judgment for plaintiff. Appeal by defendant,</p>

CoNTR.ovef.sy submitted without action under the Code § 315, at Pall Term, 1878, of Epgecombe Superior Court, to Seymour, J. The case is sufficiently stated by The Chief Justice. His Honor gave judgment for plaintiffs and the defendant appealed.

Civil ActioN tried at Fall Term, 1878, of Rowan Superior Court, before Graves, J. The facts necessary to an understanding of the case are embodied in the opinion of this court. Verdict for plaintiffs, judgment, appeal by defendant. See Bradford v. Coit, 77 N. C., 72.

<p>Claim and Delivery — When Maintainable.</p> <p>Claim and delivery is not maintainable against one who has neither possession nor control oí the property sought tobe recovered, but who has sold and delivered it to another party.</p>

Claim and' Delivery tried üt June Special T'ertn, 1878, of Wake S-uperior Court, before Seymour, J. The parties-having waived a trial by jury,, the court found the following facts as appear from the record t — ■ 1.

MotioN to vacate an Order of Arrest, heard at Fall Term, 1878, of Davidson Superior Court, before Graves, J. The plaintiff instituted a civil action for damages against the defendant for the seduction of his daughter, and on filing tlie required bond, an order of arrest was made by the clerk, and the defendant was held to bail.

<p> Divorce. </p> <p>1. A husband is not entitled to a divorce unless upon a separation by the wife without default of the husband, and a living in adultery by the wife.</p> <p>2. The adultery of the wife committed by her after a separation caused by the default of the husband, will not avail him to dissolve the bonds of matrimony. Divorces are granted on the application of the party injured. Bat. Rev., eh. 37, § 4.</p>

<p>Civil Action for Divorce a mensa et thoro heard on motion in the cause at Spring Term, 1878, of Rutherford Superior Court, before Cox, J.</p> <p>This was a motion by the plaintiff at the appearance term for alimony ‘pendente lite and for the custody of the children of the marriage. The alleged cause of divorce was cruel treatment on the part of the defendant, the complaint setting out the nature of and specifying the occasions when the several acts of cruelty were perpetrated; notably that on or about the last of January or first of February last, one of the children of the parties was seriously ill, needing the attention of both parents, and while it was in this low state of health, from which it soon died, the defendant was drinking and abusing the plaintiff and threatening her life, and on a certain night ordered persons who were visiting the sick child to leave the house, and also ordered the plaintiff to leave. Being greatly alarmed and fearing her life would be taken, she went to her father’s on that night.</p> <p>The plaintiff’s affidavit states that some of the facts complained of have existed more than six months before suit brought, and that defendant “is trying to dispose of his property for the purpose of leaving the state, and has^. offered his land for sale, avowing his intention to leave the’ state,” and that the children were small and needed her care. It also appeared by the affidavit of Wade Hill, the father of plaintiff, that she was. without means to support herself or to defray the expenses of this action, and that defendant was the owner of a tract of land of the value of one thousand one hundred dollars, subject to a mortgage of about two hundred dollars, and also owned horses, cattle and other' stock.</p> <p>Thereupon His Honor found the following: That the complaint set forth facts which, if true, were sufficient to entitle the plaintiff to the relief demanded; that plaintiff has not sufficient means for support during the prosecution of the action and to defray the necessary expenses thereof; that defendant owned a tract of land worth $1,000, and personal property worth $300, and that his income was $225 or more; and adjudged that defendant pay to plaintiff seventy-five dollars a year as alimony, and awarded the custody of the three youngest children, girls, to the plaintiff, and of the oldest child, boy, to the • defendant. Prom which judgment the defendant appealed.</p>

Civil ActioN for Divorce a mensa et thoro heard on a motion for alimony pendente lite, at November Special Term, 1878, of MadisoN Superior Court before Avery, J. At the regular term the plaintiff’s counsel made the motion for alimony, and a reference was ordered to ascertain what estate or property was hfeld by defendant, and his annual income, and a report returned.

Civil ActioN to recover the amount of a Eire Insurance Policy, tried at January Special Terna, 1879, of Waice.

<p>Motion by the defendant to recall and set aside an execution in favor of the plaintiff, heard at Pall Term, 1878, of Granville Superior Court, before Kerr, J.</p> <p>The opinion contains the facts. The motion was denied and the defendant appealed.</p>

APPLICATION by defendant for an Injunction heard at Fall Term, 1878, of Union Superior Court, before Schenck,J. The facts appear in the opinion. The injunction was refused and the defendant appeáléd.

Civil Action tried at Spring Term, 1878, of NORTHAMPTON Superior Court, before ÍSeymour, J. The plaintiff and others had become sureties on a guardian bond of the defendant, taken by the late county court of Northampton, on the 6th of March, 1866. Suit was brought on said bond against the defendant as principal and the plaintiff and others as sureties, and. a large recovery had.

Proceeding for division of land between tenants.in common, heard on appeal at Pall Term, 1878, of Burke Superior Court, before Gudger, J. Commissioners were appointed by the court and ordered! to divide the land described in the pleadings into three equal parts, assessing the more valuable dividends with such sums as may be necessary to be paid to the dividends-of inferior value to make the division equal; and they were directed to assign to the tenants such shares in the…

CONTROVERSY submitted without action under the Code, § 315, and heard at January Special Term, 1879, of Wake Superior Court, before Seymour, J. The plaintiff as executrix of Jane F. Haywood, seeks to recover of defendant the sum of $304.61 with interest, and the facts upon which the claim is based are as follows: 1.

Civil Action in the nature of Trover, tried at Fall Term, 1878, of Moore Superior Court, before Buxton, J. The defendant, John M. Monger, and one Richardson, had. been tenants in common of a turpentine still, the property in dispute. Richardson sold his interest in the same to the plaintiff.

MOTION to reform a Judgment made before the Clerk and heard on appeal at Fall Term, 1878, of Mecklenburg Superior Court, before Schenclc, J. The plaintiffs, T. R., Louis, Robert and Virginia Waring were tenants in common of a tract of land, and in 1871 j filed an ex parte petition to divide the same, which was done, and into four lots of unequal value.

<p>Petition to Rehear filed by defendants and heard at Jan-nary Terra, 1879, of The Supreme Court.</p> <p>The errors assigned are stated by The Chiee Justice in delivering the opinion. See same case, 78 N. C., 361.</p>

INDICTMENT'for an Affray tried at November Term, 1878, of Wake Criminal Court, before Strong, J. The opinion contains the facts.

INDICTMENT for Murder removed from Richmond and Eried at Spring Term, 1878, of Stanlv Superior Court, before Moore, J. The first exceptions are stated in the opinion, of the court.. The prisoner and Allen Jacobs were charged with killing one Jere Everett.

<p>Indictment fur a Misdemeanor tried: at Spring Term, 1878, of Henderson Superior Count,, before Cloud, J.</p> <p>This aetion was commenced before a Justice of the peace,, in which the defendant vías charged with entering upon the-land of the prosecutor, J. H. Townsend, in violation of Bat. Rev., eh. 32, § 116. Judgment was rendered against him for a small sum and costs, from which he appealed to the-superior court where the case was submitted to a jury who found him guilty. Defendant then moved for a new trial which was refused by the court, and judgment' was pronounced,, from, which he appealed.</p>

INDICTMENT for a Misdemeanor tried at September Term, 1878, of Alleghany Inferior Court. The defendants were convicted, and from the judgment pronounced on the verdict they appealed to the supreme court. The statement of the case sets forth the facts proved on the trial and the prayer of defendants for special instructions which were refused. Upon the hearing in this court, a motion was made on behalf of the state -that the appeal be dismissed.

Indictment for an Affray, tried at Spring Term, 1878, of Buncombe Superior Court, before Cloud, J. The facts are sufficiently stated by Mr. Justice Ashe in delivering the opinion. Verdict of guilty, judgment, appeal by defendant.

INDxctment for an Assault with intent to commit rape, Iried at Spring Term, 1878, of Cumberland Superior Court, before Moore, J. The facts necessary to an understanding of the case appear in the opinion. Verdict of guilty, judgment, appeal by defendant.

INDICTMENT for Assault and Battery tried at Spring Term, 1.878, of BtjNCOMBE Superior Court, before Cloud, J. The defendant was indicted for an assault and battery upon his wife, and on conviction was adjudged to be imprisoned in the county jail for two years. On appeal to this court the position is taken that the punishment inflicted is cruel and unusual, and therefore violative of the constitution.

IndictMbnt for Assault and Battery tried at August Term, 1878, of New Hanover Criminal Court, before Meares, J. The facts appear in the opinion of this court delivered by The Chief Justice. Upon the special verdict His Honor held the defendant guilty. Judgment. Appeal by defendant.

<p>Indictment? for an Affray tried at January Special Term, 2878, of Cumberland Superior Court, before Buxtón, J.</p> <p>The case is sufficiently stated by The Chief Justice.</p>

INDICTMENT for a Misdemeanor tried at January Term, 1879-, of Wake Criminal Court, before Strong, J. AtNovember term, 1877, the defendant was indicted for the violation of the act of 1873-’74, ch. 31, in that he sold one bale of cotton upon which he had given a chattel mortgage to secure certain rent due the prosecutor. The principle on which this case was decided is the same as in State v. Pickens» 79 N. 0., 652.

PetitioN for a Writ of Certiorari filed by the prisoner and granted at January Term, 1879, of The Supreme Court.

Indictment for Rape tried at Fall Terra, 1878,. of Johnston Superior Court, before Buxton, J. This was an indictment for rape found at spring term,. 1878, of Franklin superior court, and issue being joined on prisoner’s plea of1 hot guilty, a jury were regularly formed, and charged to pass on said issue; and the jury not being-able to agree on a verdict, were discharged at 12 o’clock Saturday night of the second week of the term and an entry thereof made by the clerk on the…

<p>INBictment' for an Escape- tried at Pall Term, 1878, of Macon Superior Court, before Avery, J.</p> <p>The bill of indictment was found at fall term, 1877, and is as follows: The jurors, &c.., present, that at spring term, 1876, of the superior court of Macon county, one William A. Shepherd and one Henry W. Watson, charged with' the-murder of one James P. Luckey, were duly committed to-the care and custody of J. A. Baldwin, he the said Baldwin, then and still being- keeper of the common jail of said county, there to be kept and imprisoned in the jail aforesaid until further proceedings he had in pursuance of law. And the jurors; &c., do further-present, that whilst the said Sliop-Iierd and Watson were in the custody of said Baldwin, as-such keeper of the common jail as aforesaid, on the first of' October, 1877, in the county aforesaid, he the said Baldwin as keeper aforesaid, unlawfully, negligently and contemptuously did permit and suffer the-said Shepherd and. Watson, to escape and go- at large, &c-: Under the charge of the-court, the jury rendered a verdict of guilty. Judgment,, appeal by defendant. The facts are sufficiently stated in. the opinion..</p>

<p>False Pretence — Insufficient Indictment.</p> <p>An indictment for false pretence, charging that defendant represented a horse which he traded to prosecutor, “ to be all right, whereas in truth and in fact he was not all right, hut diseased to such an extent as to render him worthless,” is too vague and indefinite, and a motion in arrest of judgment after conviction was properly allowed.</p>

Indictment for obtaining goodfe under False Pretences tried at Fall Term, 1878, of Iredell Superior Court, before Gudgea•, J. After a verdict of guilty the defendant’s counsel moved in arrest of judgment on the ground that the bill of indictment did not charge the property, alleged to have been obtained by false representations of defendant, to be of any value. The motion was refused, judgment, and the defendant appealed.

<p>Fine and Costs — When Discharged.</p> <p>Where a defendant, after conviction for an assault, confessed judgment with sureties to secure the fine and costs imposed, and execution issued and was returned unsatisfied, it toas held that the original judgment was discharged, and that a motion to order the defendant agaiii into custody until the fine and costs were paid, was properly refused.</p>

INDICTMENT for Fornication and Adultery tried at Fall Term, 1878, of Catawba Superior Court, before Gudger, J. The facts appear in the opinion. The defendants requested the court to charge the jury that there was no evidence of any criminal intercourse, which was refused ; but His Honor told the jury there was some evidence and that they must determine from the circumstances whether there was enough to satisfy them beyond a reasonable doubt of defendants’guilt.

INDICTMENT for Forgery tried at Fall Term, 1878, of Richmond Superior-Court, before Buxton, J. The defendant is charged with the crime of forgery in an indictment containing three counts, in each of which the alleged forged instrument is described in these 'words : “May 4th, 1878.

Indictment for Forgery tried at Fall Term, 1878, .of Mecexenbub© Superior Court, before Sehenclc, J. The facts appear in the .opinion. Verdict of guilty, judgment, appeal by defendant. See State ¶. Leak, ante, 403.

IndiCtment for an Affray tried at Pall Term, 1878, of Yadicin Superior Court, before Graves, J. The facts necessary to an understanding of the case are embodied in the opinion of this court. Verdict of guilty, judgment, appeal by defendant.

IndictmeNt for Burglary tried at Fall Term, 1878, of Orange Superior Court, before Kerr, J. The defendants, Henry A. Davis, Henry F. Andrews and Lewis Carlton, were tried and convicted of burglary.

<p>Juror Challenging — 'Evidence—Indictment.</p> <p>1. A juror was passed to the prisoner who challenged him for cause, ai:d on voir dire he stated he had formed and expressed the opinion that the prisoner was not guilty, and the court then allowed the challenge of the state 'and directed the juror to stand aside; Held not to be error.</p> <p>3. Declarations of one .who had made threats against the deceased on the night of the homicide are hearsay and not admissible in evidence.</p> <p>3. A defect in an indictment in stating the time imperfecrh\ where it is not uf the essence of the offence, is cured by statute. Bat. Rev., jh. 33, § 66.</p>

IndictmeNT for Murder removed from Yadkin and tried .at Fall Term, 1878, of Surry Superior Court, before Grams, J. The prisoners were charged with killing one Costin D. Butner and were found guilty of manslaughter. Judgment •and appeal. See same case, 78 N. C., 523. The case is sufficiently stated by Mr. Justice Dillard in delivering the ■opinion.

Indictment for an Assault tried at Fall Term, 1878, of Guilford Superior Court, before Kerr, J. In support of the charge alleged against the defendant, the prosecutrix' testified among other things that upon one occasion she was forced to change the route she was going from one place to another by reason of the conduct of defendant, in that, he pursued her, made indecent propositions to her, and frightened her so greatly that she took refuge in a neighbor’s house.

INDictment for a Misdemeanor tried at Fall Term, 1878, of Columbus Superior Court, before Buxton, J. When the case was called for trial the defendant’s counsel moved to dismiss for want of jurisdiction. His Honor allowed the motion, and Mclver, solicitor for the state, appealed. ■

INDICTMENT for Murder removed from Guilford and tried at Fall Term, 1878, of Randoph Superior Court, before Kerr, J.. The prisoner was charged with killing his wife by administering poison. The evidence in support of the charge was-circumstantial, and only that part as was deemed material, to the exceptions taken is incorporated in the statement of the case sent to this court; and that which is deemed sufficient to an understanding of the opinion is as follows:.

<p>Liquor Selling — Sufficiency of Indictment — Port Wine — Common Knowledge.</p> <p>1. An indictment under the act of lS76-’77, ch. 3S, for selling “intoxicating liquors ” is sufficient without specifying the particular kind of liquor.</p> <p>2. On the trial of such indictment it was proved that defendant sold port wine, but there was no evidence that it was intoxicating, and after a verdict of guilty the court refused a motion for a new trial; Held, not to be error. The fact of its intoxicating quality is a matter of common knowledge, and can be passed on by the jury without proof.</p>

Indictment for Larceny tried at Spring Term, 1878, of Craven Superior Court, before Kerr, J. The bill of indictment contained two counts, in one of which the defendant was charged with stealing an ox, and in the other one pound of beef. After the jury returned a general verdict of guilty, the defendant’s counsel moved in arrest of judgment. Motion overruled, judgment, appeal by defendant.

Indictment for Murder tried at August Term, 3878, of Wake Criminal Court, before Strong, I The prisoner was charged with the murder of Thomas J, Passmore, a constable and deputy sheriff. He was arrested by deceased upon a warrant of a justice of the peace for larceny and committed to the jail of Wake county, where he was confined for three months, and then made his escape by assaulting the jailor and taking his pistol which he carried off with him.

Indiotment for Murder removed from Burke and tried .at Fall Term, 1878, of McDowell Superior Court, before Qudg&r, J. The prisoner was charged with the murder of his wife by .means to the jurors unknown.;- The case states that the prosecution relied wholly on circumstantial evidence tending to show that the homicide occurred on the 6th of March, 1877, while the prisoner alleged that his wife was living long after that date, and proposed to prove by a witness that about…

<p>INDICTMENT for Murder tried at Fall Term, 1878, of Rock-INGHam Superior Court, before Kerr, J.</p> <p>The prisoner was charged with the murder of one George Goode.</p> <p>The details of the homicide and the attending circumstances were testified to by several witnesses who were present at the time when it was committed. Their testimony was in substance that the deceased was sitting at the supper table at the house of one Jane Crutchfield on the night of the last day of September, 1877, with his back towards the south door of the room, when the prisoner made his appearance at that door with a gun in his hands and called out, “ George Goode, damn you, say your prayers, I am going to kill you,” and immediately discharged his gun. As the prisoner uttered the words, the deceased sprang up and was making his escape from the room at the north door as the gun was fired. The prisoner rushed through the room in pursuit with a large sword in his hand exclaiming, “ 0 damn you, I’ll get you,” and as soon as he had passed out, several distinct blows were heard and the prisoner said: “ I have killed him. and there is another I am going to put in the same fix.”</p> <p>Tbe deceased was shot through the body and wounded with cuts on the head, from the effects of which he died early the next day. There was much evidence offered of previous difficulties between the parties and of threats uttered by the prisoner against the life of the deceased, which in the view we take of the case need not be further noticed.</p> <p>James P. Dalton, introduced for the state, testified that on the 2nd day of October, after the homicide, the prisoner came to his house and on being asked his name and if he was the person who killed George Goode, said in reply, that he was. On being questioned about the matter, the prisoner said further, “ that he killed him in self-defence; that he got a gun at one Fulps, and shot him at Crutchfield’s, and did not know that he had hit him, and then pursued him and hit him several licks with a sword.”</p> <p>Another witness examined for the state, J. H. Clark, testified that the prisoner came to his house late on the night of the homicide and said “ he had shot George Goode through and through with a rifle, and had cut his way out; that George Goode and his crowd had way-laid him on the road near George Young’s, and he had cut his way out.”</p> <p>This evidence was brought out by the state, the defendant introducing no testimony. There was a verdict of guilty, judgment, appeal by prisoner.</p>

INDictment for Murder tried at Pall Term, 1878, of YaNcey Superior Court, before Gudger, J. The prisoner and one Edward Boon were indicted for the murder of John S. Woodfin, the latter as having done the killing, and the prisoner as being present, aiding and abetting.

INDICTMENT for Murder tried at Spring Term, 1878, of Buncombe Superior Court, before Cloud, J. The prisoner was indicted for killing Anderson Garrón, and the only witness introduced by the state who saw the difficulty was one M. T. Benefield, who testified substantially as follows : — On Saturday the 24th of November, 1877, the prisoner, deceased and witness, with a four ox team, two of which with the wagon belonged to deceased, and the other two to witness, hauled from…

Indictment for Forgery tried at Fall Term, 1878, of Henderson Superior Court, before Avery, J. The record states that the bill charged that defendants did feloniously and falsely make, forge and counterfeit and caused to be^ falsely made, &c., a certain order as follows: “ Mr. Jackson Barnett — Please let young lady have the amount of 30.0 and charge the same to me.

<p>INDICTMENT for Murder tried at Spring Terra, 1878, of Pender Superior Court, before Eure, J.</p> <p>The bill was found at fall term, 1877, of Sampson superior court, and at the following term an order was made on affidavit of prisoner, after his arraignment and plea of not guilty, to remove the case to Pender, and when it was called, the prisoner moved to quash the bill, for that, it had been found by an incompetent grand jury — one of whom not having paid his taxes for the preceding year, which fact came to his knowledge after the order for removal was made. Motion refused and prisoner excepted.</p> <p>The dying declarations of the deceased, John D. Lamb, (as set out by Mr. Justice Ashe in the opinion) were admitted as evidence after objection by prisoner, that part of which detailing the transaction being as follows: The deceased said he went to prisoner’s cooper-shop and asked him if he had missed two barrels, and if he did that he (deceased) took them. Prisoner replied by telling him to take the other barrels and every thing he had away from there, that he had treated his (prisoner’s) children badly. Deceased said, “ Jim, you must be a fool,” and the prisoner caught up a hatchet and struck him with it on the side of the head above the ear; did not know how the wound on the top of his head was made; he fell and after getting up tried to go to the road; did nothing to prisoner except to make the remark aforesaid; did not strike prisoner, and no one was present except prisoner and himself.</p> <p>A witness was then introduced who testified that he went to the prisoner’s shop shortly after the difficulty, and saw a bloody hatchet, pole and adz, and blood sprinkled about on the shavings, and some other evidences of a mutual combat ; that on the day before the fight he heard deceased say that prisoner’s children had taken some of his wood, and if prisoner bothered him he would wear him out to a frazzle; that deceased did not appear to be mad at the time he made this remark. Another witness testified that there was an altercation between them, deceased walking up to prisoner and slapping his hands at him, and he then knocked prisoner down with a frow, and prisoner struck him with the hatchet and threw the adz at him.</p> <p>The state then introduced evidence to corroborate the dying declarations, and the witness testified as to declarations made to him by deceased a few minutes after the difficulty occurred, which were in substance the same as above stated.</p> <p>The prisoner asked the court to charge :</p> <p>1. If deceased struck prisoner, and by reason of the furor brevis caused by the blow, prisoner killed deceased, it would be manslaughter. Given.</p> <p>2. If deceased made the assault and it was violent and sudden, and prisoner was unable to retreat without danger of death or great bodily harm, and prisoner slew him, it would be homicide excusable. Refused.</p> <p>3. If prisoner was in his yard at work when assaulted, he was not bound to retreat to the wall, but had the right to repel force with force so as to overcome his assailant, and if the killing occurred in this way, it was excusable. Refused.</p> <p>4. If the jury believe deceased went into prisoner’s enclosure and assaulted him, knocking him down, and prisoner struck with the hatchet but did no serious injury, and thereupon the deceased used the frow, a deadly weapon, and prisoner believed that he was in danger of losing his life or receiving great bodily hann, and slew the deceased, it would be excusable homicide. Refused.</p> <p>5. If deceased went to prisoner’s, having been forbidden to come upon his premises, he was guilty of a forcible trespass, and if he there made an assault on prisoner, the latter was not bound to retreat, and if the killing occurred by repelling force with force, it would be excusable homicide. Refused.</p> <p>.These instructions were refused on the ground that they were not applicable to the facts. The jury found the prisoner guilty of manslaughter. Judgment, appeal by prisoner. After the argument in this court, a petition for a certiorari was presented.</p>

INDICTMENT for a Misdemeanor tried at October Term, 1877, of New Hanover Criminal Court, before Meares, J. The defendants are charged with violating the provisions of section 12 and 31 of chapter 156 of the revenue act of March 10, 1877.

INDICTMENT for Burglary tried at Fall Term, 1878, of-Cumberland Superior Court, before Buxton, J. The indictment was found by a grand jury in Bladen,, and the case was removed to Cumberland for trial. After-conviction the prisoner moved for a new trial and in arrest. of judgment on the grounds as stated in the opinion of this court. His motion. was refused. Judgment, appeal by prisoner.